V.A. Mohta, J.
1. Whether cross-objections under Order 41, Rule 22 Civil Procedure Code are maintainable in respect of appeals filed under section 28 of the Hindu Marriage Act is a point of law raised in the present second appeal.
2. The answer to this question principally depends upon the combined reading of sections 21 and 28 of the Act. Contention of one side is that right to appeal as well as to file cross-objections are both substantive rights and as the Act specifically provides for appeals, and not for cross-objections, provisions contained in section 21 do not spell out such right. The other side contends that both cannot be equated. Right to file cross-objections is merely procedural and as procedure regulating the appeal under section 28 is not separately provided for and section 21 makes C.P. Code applicable to the proceedings under the Act, Order 41, Rule 22 Civil Procedure Code is attracted. In my judgment, the answer to this question has to be in favour of maintainability of cross-objections for the reasons that follow.
3. New section 28 does not provide for any special procedure governing the appeals. The only relevant section dealing with procedure is section 21. It makes Civil Procedure Code applicable to the proceedings under the Act 'subject to the other provisions' and 'as far as may be'. Read together these expressions mean that all provisions of Civil Procedure Code which are neither inconsistent nor contrary to the provisions of the Act shall apply, subject to the matters specifically provided for. This takes me to the point whether cross-objections can be placed at par with appeals. Right to appeal has always been considered substantive right. Even under Civil Procedure Code the provisions regarding first appeals are contained in section 96, but no specific section deals with cross-objections. Order 41 of the Civil Procedure Code deals with procedure governing the appeals under section 96. Order 41, Rule 9 and onward rules are consolidated under the heading 'procedure on admission of appeal'. By the very nature of things, the right to file cross-objection does not arise independently by arises only if appeal is filed. Thus there is nothing like cross-objection de hors of appeal. Order 41, Rule 22 gives a second chance to the respondent on certain conditions to challenge the adverse findings in the event of his opponent choosing to challenge the matters held against him. Thus, it is obvious that both stand on a different footing and cannot be equated.
4. My attention was invited by Shri Kherdekar to the decision in National Sewing Thread Co. Ltd. v. James Chadwick and Brothers Ltd., : 4SCR1028 dealing with the point of maintainability of letters patent appeal against the decision of a Single Judge of High Court under the Trade Marks Act. It is observed :
'The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously, after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.'
Supreme Court had occasion to deal with a similar point under the Defence of India Act, 1939 in the case of Collector, Waranasi v. Gauri Shankar, : 1SCR372 . Section 19(1)(f) of the Defence of India Act deals with the appeal but no procedure for its disposal is provided for in the Act. Under the circumstances, Civil Procedure Code was held to be governing those appeals. Division Bench of Andhra Pradesh High Court in Government of Andhra Pradesh v. Mrs. K. Padma Rani, : AIR1976AP122 had an occasion to deal with the point as to whether cross-objections in appeals provided under section 110-D of the Motor Vehicles Act, 1939 are maintainable. In this enactment also no special procedure governing the appeals is provided for High Court has taken a view in favour of maintainability of the cross-objections.
5. Shri Palshikar heavily relied upon sections 21-A and 28-A, the newly added provisions by the Marriage Laws Amendment Act, 1976 to demonstrate that on many matters the Act provided for parallel provisions to Civil Procedure Code. According to him this is indicative of a clear legislative intention not to apply Civil Procedure Code generally to the proceedings under the Act. Considering the object with which section 21-A has been brought on statute book, it is clear that intention was to avoid inconvenience, multiplicity of proceedings and unnecessary waste of public time and money that was caused because of the filing of petitions and counter petitions in different parts of India in certain matters. Section 24 of the Civil Procedure Code deals with only a limited territorial jurisdiction confined either to district or to the State and was inadequate to deal with certain matters under the Act. It is, therefore, that the Law Commission in the 59th Report made relevant recommendations based on experiences and situations that arose after the Act was brought into force. Now section 21-A is thus product of those recommendations and it cannot be said that it is a parallel provision to section 24 Civil Procedure Code. Section 28-A dealing with the question of enforcement of decrees and orders is not a new provision. Indeed, in section 28, as it stood before the amendment, such a provision had already existed. The Law Commission thought that section 28 as it stood was rather clumsy and indeed had given to conflicting judicial opinions about maintainability of appeals in certain matters. It was, therefore, thought fit to clarify matter about maintainability of appeals and carve out provision about enforcement of decrees and orders from section 28 to put it in a separate and independent substantive section. My attention was also invited to the sections 35 and 40 of the Special Marriage Act for the sake of analogy. Section 35 deals with the relief to the respondents in divorce and other proceedings and section 49 makes Civil Procedure Code applicable. It is difficult to appreciate how these provisions can be an answer to the point involved in the present matter.
6. Now, about the merits of the matter. This unsuccessful marriage took place in June 1962 between Hindu Rajputs at Aket in District Akola. In August 1966, daughter Anita was born and two years thereafter a son Raju. It is January 1970 that the wife Shamabai the respondent is reported to have left Warud, District Amravati, where the husband Ranjitsingh the appellant resides. On 4-4-1970, Ranjitsingh served a notice (Ex. 23) on the wife to which a reply dated 14-4-1970 (Ex. 24) was given. The allegations in Ex. 23 are that the wife had suddenly left the house with children without any rhyme or reason and as all attempts to bring her back had failed, she was asked to resume marital life. The reply says that she had not left the house without any unreasonable cause. She had received cruel treatment at the hands of the husband and that she was sent to Aket from Warud due to intervention of uncle of the husband Shri Ishwarsingh. Wife demanded maintenance for self and for the children. It was on 7-3-1972 that a petition for judicial separation in terms of section 10(1)(a) and for custody of children under section 26 of the Act was filed by the husband. The defence is based on cruelty physical as well as mental. Husband had become drink-addict and was having criminal intimacy with the younger sister of sister-in-law of the husband. Both parties entered into witness box and led oral evidence. The husband succeeded under section 10(1)(a) but failed in getting custody of children. He appealed and wife filed cross-objections. The first Appellate Court remanded the matter after which some more witnesses were examined. The same decree was once again passed by the trial Court. Order of permanent alimony was also passed. But, in the present matter, I am not concerned with that said aspect. Once again husband preferred an appeal and wife preferred cross objections. The Appellate Court set aside the decree of judicial separation believing the defendant, confirmed the finding regarding custody of the children and dismissed the petition. The present appeal is directed against the said appellate decree.
7. It is true that there is no corroboration of the version given by the wife about the alleged cruelty. The trial Court had granted decree in favour of the husband principally because the wife's testimony was not corroborated. The Appellate Court, however, came to the conclusion that in such matters corroboration is not always possible. Several circumstances including the absence of reason for the wife to leave the husband after 8 years of married life and bearing two children from him, were considered. The wife was believed. I was also taken through the evidence of the husband. Absolutely no reason has been advanced by way of a possible clue for this sudden decision by the wife which apparently must have been unhappy for her. For a Hindu wife to take such decision is not that easy. Mere conjectures certainly cannot take the place of proof. But, this unexplained position on record cannot be ignored. In any case, I see no reason to interfere with this pure finding of fact in second appeal. It is not as if, once the defence of cruelty is held to be not proved, decree for judicial separation must follow as a matter of course. The term 'desertion' with relation to matrimonial matters implies intentional abandonment without consent of the spouse and without reasonable cause. In this case, finding of fact is against the husband even on this point.
8. This takes me to the question about custody of children. It was contended that considering the provisions of section 26 of the Hindu Minority and Guardianship Act making father the natural guardian of a child of more than 5 years, custody should have been granted to the husband specially when existence of the circumstances permitting deviation from this normal role were not established. In such matters welfare of children is the paramount consideration. Section 26 requires ascertainment of wishes of minors and consequently respecting them whenever possible as well as desirable. Keeping this provision in view, the children were ordered to be produced and accordingly, they were produced in the Court today by the wife. Husband was absent. However, in presence of the learned Counsel their wishes were ascertained and they made an emphatic statement that they would not go to the father. Even the lower Court had ascertained their desire and their attitude was the same. In view of lapse of time and the advancement of their age, I thought it proper to ascertain the position once again. The nature of the defence proved cannot also be ignored. There is nothing on record to indicate that it is not in their interest to keep them with mother. This is not a case where they have to be protected despite their immature opinion and impulse arising out of continued association with the mother. In the whole background I see no justification even to interfere with findings concurrently recorded by both the courts below.
9. In the result, the present appeal is dismissed; but under the circumstances without any order as to costs.